This is the decision of the
Final Adjudication Branch concerning your claim for compensation under the Energy
Employees Occupational Illness Compensation Program Act of 2000, as amended, 42
U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated
below, your claim for benefits is denied, effective June 4, 2003.

STATEMENT OF
THE CASE

On August 2, 2001, you filed a Form EE-1 (Claim for Benefits
under EEOICPA) based on beryllium sensitivity. You provided a copy of a
report of Proliferation Studies, dated March 6, 1998, stated that a significant
proliferative response to beryllium salts was observed. The Department of
Energy (DOE) verified that you worked at the Beryllium Corporation of America
in Reading, PA, from January 13, 1960 to February 28, 1993. The Beryllium
Corporation of America in Reading, PA, is recognized as a covered beryllium vendor
from 1947 to 1979. See DOE, Office of Worker Advocacy, Facility
List.

On July 29, 2002, the Cleveland district office received a
completed Form EN-15, signed and dated by you on July 24, 2002. In
response to a question on that form, you stated that you had not filed a tort
suit against a beryllium vendor in connection with an occupational illness for
which you would be eligible to receive compensation under the EEOICPA.
Above your signature, that form notified you that you must immediately report to
OWCP (Office of Workers’ Compensation Programs) any third party settlements you
receive and any tort suits you file against a beryllium vendor.

On October 29, 2002, the Final Adjudication Branch (FAB)
issued a final decision which concluded that, because you are a covered
beryllium employee who had been found to have beryllium sensitivity, you were
entitled to beryllium sensitivity monitoring beginning on August 2, 2001.

On June 4, 2003, you and approximately 50 other plaintiffs
filed a tort suit against the Beryllium Corporation of America and its
successors in the Court of Common Pleas of Philadelphia County, PA.
Paragraph 55 of the complaint stated that the plaintiffs “resided and/or worked
in close proximity to the plant, commuted to and/or worked within the plant. .
. .” Paragraph 65 stated that “[d]uring each of the plaintiffs’ residence
and/or employment. . .they were exposed to unlawful, dangerous and unhealthful
emissions of beryllium resulting in serious and permanent injury, or the need
for medical monitoring. . . .” Under Count I (Paragraph 80) of that suit,
you alleged that, as a direct and proximate result of the negligence,
carelessness, and recklessness, of the defendants, you sustained, “occupational
and non-occupational exposure resulting in beryllium sensitivity,” for which
you demanded “judgment against the defendants. . .in an amount in excess of
Fifty Thousand ($50,000) Dollars.”

The complaint was dismissed by the court on August 5,
2003. The court ruled that the complaint had improperly joined multiple
unrelated plaintiffs and ordered that the plaintiffs be severed. You
filed an amended complaint on September 18, 2003, and second and third amended
complaints in April and May 2004. Each amended complaint alleged damages
from your occupational exposure to beryllium. No evidence has been
received to show that this tort suit has been dismissed.

The tort suit was reviewed by the Counsel for Energy
Employees Compensation, Division of Federal Employees’ and Energy Workers’
Compensation. The Counsel reported in a memorandum dated January 4, 2005,
that an examination of your complaint revealed that your claims relied, at
least in part, on your exposure to beryllium while working at the Reading plant
and that your wife’s consortium claim was derivative of your work-related
exposure to beryllium. For that reason, it was determined that at least
some aspects of your suit clearly fall within the statutory definition of a
covered tort case subject to 42 U.S.C. § 7385d, because it includes claims
against beryllium vendors that arise out of the exposure of a covered beryllium
employee, while so employed, to beryllium.

The Counsel further noted that 42 U.S.C. § 7385d(c) explicitly
bars further receipt of benefits under Part B of the Act by any beneficiary who
files a tort suit covered under 42 U.S.C. § 7385d(d) after April 30, 2003,
if that date is more than 30 months after the diagnosis of a covered beryllium
disease. Because you filed your suit on June 4, 2003, you could not have
dismissed that suit within the time limits specified in 42 U.S.C. §
7385d(c). For those reasons, the Counsel determined that you no longer
had any eligibility for benefits under Part B of the Act, by operation of law,
as of June 4, 2003.

The Counsel also noted that a claimant who accepts EEOICPA
benefits has legal obligations under the Act. At the time you accepted
benefits, you had signed a Form EN-15 and certified that you knew you must immediately
report to OWCP any tort suit you filed against a beryllium vendor.

On March 28, 2006, the Director, Division of
Energy Employees Occupational Illness Compensation (DEEOIC), issued an order
vacating the final decision of October 29, 2002, and directing the Cleveland
district office to issue a new recommended decision terminating entitlement to
benefits under EEOICPA effective June 4, 2003. On April 19, 2006, the
district office issued a recommended decision pursuant to the Director’s order.

OBJECTIONS

On June 16, 2006, the Final Adjudication Branch received
your statement of objection to the recommended decision. You presented
the following objections:

You
argue that bases for your claims in your tort suit are environmental in
nature.

You
argue that a Memorandum Opinion of an Associate Solicitor for Employee
Benefits in the matter of [Name Deleted] affirmed that a claimant
can maintain both a claim under the EEOICPA for occupational exposure to
beryllium and a separate tort suit for environmental exposure to beryllium

You
argue that your complaint is identical to the one filed by [Name
Deleted],Docket No. 12401-2002, who brought an exposure claim
as a result of the operations of the Reading plant. You state that
your and [Name Deleted] lawsuits are identical and that [Name
Deleted] was awarded benefits by the Final Adjudication Branch.

While a claimant may maintain a claim under the EEOICPA
based on occupational exposure to beryllium and a separate tort suit based on
environmental exposure to beryllium, your tort suit specifically alleges
occupational and environmental exposure to beryllium. A review of [Name
Deleted]’ssuit fails to reveal any reference to occupational
exposure as the basis of his claim for damages. For that reason, your tort
suit and [Name Deleted]’s tort suit are not identical.

Because your complaint and demand for damages relies, at
least in part, on your exposure to beryllium while working at the Reading
plant, and because your wife’s consortium claim is derivative of your
work-related exposure to beryllium, your suit is a “covered tort case” under
the provisions of 42 U.S.C. § 7385d(d). As such, 42 U.S.C. § 7385d(c)
requires that your suit must be dismissed no later than April 30, 2003; as that
date is later than the date that is 30 months from the date you were
determined to have been sensitized to beryllium. (Beryllium sensitivity
was first identified on March 6, 1998. September 6, 2000, is 30 months
from that date.)

FINDINGS OF
FACT

1.
You were awarded medical monitoring for beryllium sensitivity, effective
August 2, 2001, by final decision issued on October 29, 2002.

2.You filed a tort suit on June 4, 2003, against a beryllium vendor based
on injuries incurred on account of exposure for which you had been found to be
entitled to compensation under Part B of the Act in the form of medical
monitoring for beryllium sensitivity.

3.The Director, DEEOIC, vacated the final decision of October 29, 2002.

CONCLUSIONS OF
LAW

A claimant who receives a recommended denial from the
district office is entitled to file objections to the decision, pursuant to 20
C.F.R. § 30.310. In reviewing any objections submitted, the FAB will
review the written record, in the manner specified in 20 C.F.R. § 30.313,
to include any additional evidence or argument submitted by the claimant, and
conduct any additional investigation determined to be warranted in the
case. I have reviewed the record in this case, as well as the written
objections and must conclude that no further investigation is warranted.

I find that the tort suit you and
your wife filed on June 4, 2003, against a beryllium vendor, is a “covered tort
suit” as defined by 42 U.S.C. § 7385d(d). Because you could not have
dismissed that suit by the latest date provided by 42 U.S.C. § 7385d(c)(3),
April 30, 2003, I find that you are no longer entitled to medical monitoring
for beryllium sensitivity effective June 4, 2003.